Citation NR: 9627456
Decision Date: 09/30/96 Archive Date: 10/07/96
DOCKET NO. 94-17 283 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to service connection for left knee disability.
Entitlement to service connection for low back disability.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Carole R. Kammel, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1954 to May
1958.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a May 1993 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio, which denied service connection for left
knee and low back disabilities. A letter dated in July 1992
from the National Personnel Records Center (NPRC) noted that
the veteran’s service medical records were not on file and
that they could not be reconstructed. In November 1993, the
NPRC reported that the veteran’s records might be located at
the Veterans Affairs Regional Office. In a letter to the RO
dated in December 1993, the veteran inquired as to whether
his records were on file; the response was negative.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his left knee and low back
disabilities were incurred during service. He alleges that
during service he received treatment for arthritis for both
his knees and back. He contends that he was given pills for
muscle spasms in his back and placed on bed rest. The
veteran alleges that he injured his knees while performing
maneuvers in the cold while stationed in Germany.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the claims for service connection for left knee and low back
disabilities are not well grounded.
FINDINGS OF FACT
1. The claim for service connection for a left knee
disability is not plausible.
2. The claim for service connection for a low back
disability is not plausible.
`
CONCLUSIONS OF LAW
1. The claim for service connection for a left knee
disability is not well grounded. 38 U.S.C.A. § 5107(a) (West
1991 & Supp. 1995).
2. The claim for service connection for a low back
disability is not well grounded.
38 U.S.C.A. § 5107 (a).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The threshold question to be answered in this case is whether
the appellant has presented evidence of a well grounded
claim. 38 U.S.C.A. § 5107(a). A well-grounded claim is a
claim that is plausible, that is, one that is meritorious on
its own or capable of substantiation. Murphy v. Derwinski, 1
Vet.App.78, 81 (1990). If a claim is not well grounded, the
appeal must fail with respect to it, and there is no duty to
assist the veteran further in the development of facts
pertinent to the claim. Id.
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty, or for aggravation of a pre-existing injury
suffered or disease contracted in line of duty. 38 U.S.C.A.
§§ 1110, 1131 C.F.R. § 3.303. The Board notes that if a
disorder is a specified chronic disease, service connected
may be granted if it is manifested to a degree of 10 percent
within the presumptive period following separation from
service. The presumptive period for arthritis is one year.
38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991 & Supp.
1995); 38 C.F.R. §§ 3.307, 3.309 (1995).
The veteran’s service medical records were apparently
destroyed by a fire in 1973 at the NPRC. The veteran,
however, submitted a physical profile dated in January 1958
which showed that he had been hospitalized for chondromalacia
of the patella and arthritis of the right knee. He was
instructed not to perform any prolonged walking, standing or
running and was given an L-5 profile. The report was
negative for any complaints or findings referable to the
veteran’s left knee or low back.
Various private medical reports dated from August 1971 to
October 1991 show that in August 1971, the veteran was
diagnosed as having kyphosis. In October 1991, the veteran
complained of a shooting dull knee pain which lasted two to
four minutes. The assessment of the examiner was left knee
pain. At that time, the veteran gave a history of having
arthritis and degenerative joint disease of the right knee
only.
VA progress notes dated from November 1991 to July 1992 show
that in May 1992, the veteran was diagnosed as having severe
degenerative joint disease of the knees and of L4-L5. In
July 1992, the veteran received treatment for low back pain
status post laminectomy and degenerative arthritis.
On VA examination in July 1992, the veteran reported that he
had injured his back in service and that he had had surgery
in 1971 for a disk problem. He stated that since service he
had received treatment for his arthritis of the knees and
back. The veteran complained of pain in his knees as well as
low back with some radiation to his legs. X-rays of the
knees revealed bilateral degenerative changes of the knees
which were more severe on the left than the right. X-rays of
the lumbosacral spine revealed a transitional character to
S1. The veteran was diagnosed as having osteoarthritis of
the lumbosacral spine and knees, status post surgery for a
herniated nucleus pulposus, lumbosacral strain and
degenerative arthritis of both knees.
At a hearing at the RO in January 1994, the veteran contended
that he received treatment for his knees and back during
service. He alleged that he injured his knees while
performing maneuvers in Germany during cold weather. The
veteran testified that he was given pills for muscle spasms
in his back and was placed on bed rest. He stated that since
service, he had received treatment from various physicians
for his left knee and low back disabilities, but that those
physicians were deceased and his records had been destroyed.
He stated that he had had back surgery in 1971, but that it
was unrelated to his current disability.
In reaching its decision, the Board has reviewed the
testimony provided by the veteran during the January 1994
hearing. Initially, the veteran was not diagnosed as having
arthritis of the left knee or back within a year from service
or until many years after service. The first objective
medical evidence shows that the veteran was diagnosed as
having kyphosis of the back in 1971. The veteran’s record is
devoid of any objective medical evidence establishing an
etiological relationship between the veteran’s left knee and
low back disabilities to his service decades earlier.
Consequently, the claims for such disabilities is not well
grounded.
Although the veteran is competent to describe symptoms that
he might have experienced during service, he is not competent
to offer a medical opinion attributing his claimed
disabilities to service, as this requires medical expertise.
See Espiritu v. Derwinski, 2 Vet.App. 492, 494-495 (1992).
Where a determinative issue involves medical causation or a
medical diagnosis, competent medical evidence to the effect
that the claims are plausible is required. Grottveit v.
Brown, 5 Vet.App. 91, 93 (1993). In the absence of competent
evidence showing that the claims are plausible, the claims
are not well grounded.
Although the Board has considered and denied the veteran’s
claims on a ground different from that of the RO, that is,
whether the claims are well grounded rather than whether he
is entitled to prevail on the merits, the veteran has not
been prejudiced by the Board’s decision. In assuming the
claims were well grounded, the RO accorded the veteran
greater consideration than the claims warranted under the
circumstances. Bernard v. Brown, 4. Vet.App. 384, 392-94
(1993).
The Board views its discussion of this issue, particularly
the need for medical evidence showing that the veteran’s
arthritis of the left knee and low back was manifested within
a year of service or related to service, as sufficient to
inform the veteran of the elements necessary to complete his
application for service connection for such disabilities.
See Robinette v. Brown, 8 Vet.App. 69 (1995).
ORDER
Evidence of well grounded claim not having been submitted,
the claim for service connection for a left knee disability
is denied.
Evidence of well grounded claim not having been submitted,
the claim for service connection for a low back disability is
denied.
F. JUDGE FLOWERS
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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